Articles Posted in Workplace Retaliation

There is no doubting increased social media use around the world means people are more connected to each other today than ever before. All it takes is a quick Facebook search to locate a person’s whereabouts, activities, and interactions with colleagues, friends, and family. This expanded access to information has led many employers to monitor and regulate the words and conduct of their employees outside of work, and at times, to terminate a worker’s employment for what the employer views is unsavory, disparaging, or unflattering behaviors. Most recently, actress-comedienne Roseanne Barr lost her job and had her self-named TV series cancelled because she made a racially offensive tweet about Valerie Jarrett, a former senior aide to former President Obama. While this may be an extreme example, it begs the question, “To what extent can an employer terminate an employee for their behavior outside of the workplace, specifically, for their social media use?”  The answer is not entirely clear.

Generally, employees in New Jersey are considered at-will, meaning their employer can terminate a worker’s employment for any reason or no reason, including social media use, so long as the termination does not violate law. However, the National Labor Relations Board (“NLRB”) has determined that certain social media use is considered “protected concerted activity” and termination for that type of social media use to be a violation of federal law.[1] The NLRB is an independent federal agency created by Congress to protect employees’ rights to unionize, and also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. https://www.nlrb.gov.

In Meyers II, 21 NLRB 882, 887 (1986), the NLRB defined concerted activity as, “individual employees that seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” In NLRB v. Karl Knauz Motors, Inc., 358 NLRB 1754, 1763 (2012), an Administrative Law Judge concluded that a BMW car salesperson was fired for posting pictures on Facebook related to an accident that took place at a sister dealership, rather than because of pictures posted by him to criticize the food and drink served at a luxury car event attended by that many other salespeople. The NLRB stated the photos of the accident were not protected activity and placed the dealership in a bad light, while the photos used to criticize the food at an event not hosted or sponsored by the employer were examples of protected concerted activities.

Mashel Law, L.L.C. recently filed a class action lawsuit in the United States District Court of New Jersey against Lyft, Inc. (Lyft) on behalf of current and former Lyft drivers who entered contracts with Lyft to receive a portion of the fare Lyft charges customers, that is, the fare charged the rider less Lyft’s applicable commission fee, and any applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, and taxes, but who did not receive the contracted driver’s fee, and who opted out of arbitration. Lyft is a “ridesharing” business that originated in San Francisco, California in 2012, and whose chief competitor is Uber. Lyft operates in at least 33 other states in the United States.

Under this straightforward common law breach of contract action, the proposed class consists of all persons nationwide who entered contracts with Lyft to provide transportation services to customers (riders) of Lyft in exchange for a portion of the fare Lyft charges riders, to wit, the fare charged the rider (plus tips if applicable) less applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, taxes, and who opted out of arbitration. The complaint also asserts common law claims of breach of the implied covenant of good faith and fair dealing, fraud, and unjust enrichment.

A class action lawsuit is appropriate when large numbers of similarly situated people have suffered same or similar injuries by the acts or omissions of a wrongdoer, typically a large corporation. Under the Federal Rules of Civil Procedure, a class may be certified if the requirements of Rule 23 are met, including: (1) numerosity; (2) commonality of law or fact; (3) typicality between the class claims and those of the named parties; and (4) adequacy of representation by the named parties and class counsel. Fed. R. Civ. P. 23(a).  “[T]he proposed class must also satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011). A party seeking certification pursuant to Rule 23(b)(3), must show that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).